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On July 22, 2020, FERC approved a mitigation proposal that Sun Jupiter Holdings, LLC (“Sun Jupiter”) and El Paso Electric Company (“El Paso”) (together, “Applicants”) submitted in response to FERC’s March 30, 2020 order (“March 2020 Order”) conditioning approval of Sun Jupiter’s merger with and into El Paso and requiring the Applicants to address the transaction’s adverse impact on competition in certain circumstances. FERC also dismissed, on procedural grounds, United States Senators Jeffrey A. Merkley (D-OR), Edward J. Markey (D-MA), and Bernard Sanders (D-VT) (collectively, “Senators”) request for rehearing, and denied Public Citizen, Inc.’s  (“Public Citizen”) request for rehearing of FERC’s March 2020 Order.

On July 16, 2020, FERC dismissed a petition for declaratory order by the New England Ratepayers Association (“NERA”) that asked FERC to assert jurisdiction over net metering, finding that the petition failed to identify a specific controversy or harm that warranted a generic response from FERC. NERA’s petition had requested that FERC declare: (1) that all flows of electricity from behind-the-meter generators under state net metering programs back to the interconnected utility are wholesale sales subject to FERC’s exclusive jurisdiction, and (2) such sales should be priced in accordance with the requirements of the Federal Power Act (“FPA”) or the Public Utility Regulatory Policies Act (“PURPA”). Commissioners Bernard L. McNamee and James Danly issued separate concurring opinions, noting that though NERA’s petition was procedurally unsound, the issues raised could be addressed on the merits in a different proceeding.

On July 16, 2020, FERC responded to a petition for declaratory order filed by a group of merchant generators (“Petitioners”) requesting that the Commission provide guidance and clarification on six areas of its cost-based reactive power ratemaking policy. While FERC declined to address five of Petitioners’ specific requests, explaining that it would address them in another ongoing reactive rate proceeding, FERC established paper hearing procedures on a single question: “what proxies, if any, may be used by merchant generators for reactive power service ratemaking purposes other than the use of the capital structure and the cost of capital of the interconnected utility.”

On June 18, 2020, FERC denied a complaint by Anbaric Development Partners, L.L.C. (“Anbaric”) against PJM Interconnection, L.L.C. (“PJM”) alleging that PJM’s transmission interconnection procedures denied meaningful open access interconnection service to Anbaric’s proposed offshore transmission projects (see December 11, 2019 edition of the WER). FERC’s June 18 order concluded that Anbaric failed to demonstrate that PJM’s transmission interconnection procedures are unjust and unreasonable, or that the requirements for merchant transmission projects are either inconsistent with open access transmission service or unreasonably limit transmission expansion. FERC also highlighted its upcoming technical conference to discuss offshore wind integration in organized markets (see June 24, 2020 edition of the WER). Commissioner Bernard McNamee issued a separate concurring statement in which he highlighted his support for the technical conference.

On June 17, 2020, FERC issued two notices of upcoming technical conferences. First, a Commissioner-led technical conference is scheduled for Wednesday, September 30, 2020 to discuss considerations related to state adoption of mechanisms to price carbon dioxide emissions, commonly referred to as “carbon pricing,” in regions with FERC-jurisdictional organized wholesale electricity markets. Second, a staff-led technical conference will be held on October 27, 2020 to: (i) discuss whether existing transmission, interconnection, and merchant transmission facility frameworks in Regional Transmission Organizations/Independent System Operators (“RTOs/ISOs”) can accommodate anticipated growth in offshore wind generation in a manner that safeguards open access transmission principles; and (ii) consider possible changes or improvements to the current framework should they be needed to accommodate such growth.

In an order issued June 9, 2020, FERC accepted a proposal from the Midcontinent Independent System Operator, Inc. (“MISO”) to require certain solar generating facilities to respond to real-time dispatch signals by registering as Dispatchable Intermittent Resources (“DIRs”). Through MISO’s proposal, all solar resources entering commercial operation on or after March 15, 2020 must register as DIRs and become dispatchable by March 15, 2022, whereas solar resources in operation before March 15, 2020 have the option, but are not required, to obtain DIR registration. In accepting the proposal, FERC rejected arguments from one protestor that the proposal unduly burdened solar projects in late-stage development, finding that MISO’s proposed two-year transition period for such resources was reasonable.

On June 1, 2020, FERC issued an order on remand from the United States Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) directing the Bonneville Power Administration (“Bonneville”) to return to Chehalis Power Generating, L.P. (“Chehalis”) refunded payments for reactive power supplied to Bonneville from August 1, 2005 through September 30, 2005. While FERC declined to require Bonneville to return the entire refund amount requested by Chehalis, it did provide interest calculated according to FERC’s interest regulation.

On April 24, 2020, FERC largely upheld an earlier-issued order imposing additional transparency obligations on Midcontinent Independent System Operator, Inc. (“MISO”), Southwest Power Pool, Inc. (“SPP”), and PJM Interconnection, L.L.C. (“PJM”) (collectively, “RTOs”) regarding the RTOs’ Affected Systems study processes. FERC declined to require holistic alignment of the RTOs’ interconnection study processes, but clarified that, in subsequent compliance filings, the Commission will scrutinize whether each RTO applies the Energy Resource Interconnection Service (“ERIS”) or Network Resource Interconnection Service (“NRIS”) modeling standards in a just and reasonable manner.

On April 27, 2020, FERC granted renewable energy company Goldman Sachs Renewable Power Marketing, LLC (“GSRPM”) authority to make wholesale sales of energy, capacity, and ancillary services at market-based rates. However, FERC also found GSRPM to be affiliated with the investment bank Goldman Sachs Group, Inc. (“Goldman Sachs”). On the basis of that finding, FERC concluded that GSRPM would be subject to enhanced reporting requirements as a Category 2 Seller in the northwest region of the United States. The order reflects FERC’s increasing interest in the disclosure of corporate structure for purposes of affiliation determinations in market-based rate applications.